The Construction and Failure of Islamic Laws of Evidence in ISIS’s State-Building Project

Guest contributor Mara Revkin outlines the legal infrastructure of ISIS. She argues that the movement’s barbarism and apparently wanton acts of terrorism belies a self-contained legal system based on Islamic law – including the Islamic law of evidence. Using interviews with eighty-two Syrians and Iraqis, Revkin reconstructs how evidence is used within ISIS’s purported borders. However, although ISIS leaders aim to consistently use the evidentiary laws to aid in their state-building endeavors, she argues, they ultimately undermine that very code of evidence and the state-building efforts because of the increasing internal corruption and impunity of actions within their ranks.

Media coverage of the Islamic State frequently refers to the group’s harsh criminal justice system, which purports to be reinstating the seventh century institutions of the original caliphate. Observers have been horrified and bewildered by the grotesque punishments—including stonings, decapitations, and immolations—that the group imposes on all who violate its strict rules. Some have suggested that we give up altogether on trying to understand the beliefs and practices of the Islamic State. For example, one analyst lamented last year, “It is not clear whether our culture can ever develop sufficient knowledge, rigor, imagination, and humility to grasp the phenomenon of ISIS. But for now, we should admit that we are not only horrified but baffled.”[1]

In a recent paper for Brookings, based on interviews with 82 Syrians and Iraqis who have seen the Islamic State’s legal system in action, I argue that the Islamic State is not as baffling as some commentators have suggested.[2] If we take seriously the “state” in Islamic State, is this phenomenon really so different from other historical state-building projects in which law has been invoked to justify political authority and violence?

Like all legal systems, the Islamic State’s has (1) rules—based on the divinely revealed body of Islamic law known as shari‘a—(2) a judiciary to apply them, and (3) a law enforcement apparatus to ensure compliance. I argue that the lawmaking and law-enforcing institutions of the Islamic State can be studied as an internally coherent legal system, even though the rules of this system are “unlawful” from the external perspective of international and human rights law. In this blog post, I try to demystify the legal system of the Islamic State by highlighting one aspect of it: the role of evidence.

No punishments without evidence

According to the Islamic State, violence is only legitimate when justified by law. In its official publications, the group insists that courts and judges may not impose punishments without sufficient evidence of wrongdoing. For example, one article, entitled “Advice for Leaders of the Islamic State,” states, “Beware of shedding blood unjustly … [U]nlawful bloodshed … would be a short-term gain whose long-term consequences are weakness and helplessness. … And by Allah, no case is reported to us involving the bloodshed of an innocent person from Ahlus-Sunnah [Sunni Muslims] that isn’t backed up by clear evidence of what he did to deserve his blood being shed.”[3] Another official document states, “We do not make accusations without evidence and proof.”[4] Criminal suspects cannot be detained for more than seven days before their case is heard by a judge.[5] If evidence is insufficient to press charges, then suspects must be released.

The role of evidence in sentencing

Analysis of criminal cases tried by Islamic State courts in Iraq and Syria indicates that judges do adjust sentences based on the persuasiveness and sufficiency of the evidence. Generally, the Islamic State imposes fixed punishments for hadd crimes specified in the Quran. The group has published tables enumerating the hadd crimes and their corresponding punishments (an example from Aleppo is translated below).[6]

In addition to these fixed punishments for hadd crimes, the Islamic State also administers discretionary punishments known in Islamic legal terminology as ta‘zīr for misconduct that is not expressly prohibited by God. These lesser punishments may also be implemented in cases where a person has been accused of a hadd crime, but the evidence is insufficient for a conviction. For example, in the Iraqi city of Anah, a suspected thief was publicly whipped as a ta‘zīr punishment because the case did not meet the evidentiary requirements for the hadd punishment (cutting off a hand).[7] In another case from Raqqa, a person accused of stealing a motorcycle was charged with the hadd crime of theft, but his sentence was reduced to a ta‘zīr punishment because the requirement of haraz (the taking of property from a private as opposed to pubic place) was not satisfied.[8] These cases indicate that Islamic State courts are—at least to some extent—concerned about establishing sufficient evidence to prove the elements of the crimes they prosecute.

Conclusion

To many observers, the Islamic State’s legal system appears irrational and incoherent. But upon closer inspection, it has articulated doctrines–for example, rules of evidence–that can be systematically studied and critiqued. Rather than dismiss the Islamic State as an incomprehensibly violent organization, a more constructive approach is to use the tools of legal scholarship to understand the logic of its institutions. Studying the legal system of the Islamic State can shed light on the strengths and vulnerabilities of its state-building project. On the one hand, the Islamic State’s crackdown on petty crime and its rapid resolution of local disputes has been welcomed by some residents of Syria, Iraq, and Libya, who prefer its harsh brand of Islamic justice to the alternative: total lawlessness.[9] But on the other hand, as the Islamic State’s bureaucracy has expanded, it has become increasingly difficult for the group to prevent internal corruption, bribery, and other forms of indiscipline. The Islamic State purports to be an accountable government with a fair legal system and officially condemns corruption.[10] But when Islamic State fighters and leaders violate their own rules with impunity–as is increasingly the case[11]–the exposure of these internal hypocrisies and contradictions is leading former supporters to abandon the group.[12]

Mara Revkin is a Fellow at the Abdallah S. Kamel Center for the Study of Islamic Law and Civilization at Yale Law School. She is also pursuing a PhD in political science at Yale University, focusing on governance and lawmaking by armed groups in the Middle East.

[1] Anonymous. “The Mystery of ISIS.” The New York Review of Books, August 13, 2015, http://www.nybooks.com/articles/2015/08/13/mystery-isis/.

[7] Islamic State, Furat Province, “Ta‘zīr of a Thief Who Did Not Meet the Conditions for Cutting Off the Hand in the City of Anah,” February 28, 2016, https://web.archive.org/web/20160615182022/https://1.bp.blogspot.com/-6KdLS7jFE4I/VtMeopbBPSI/AAAAAAABZ0o/mTuGa5lAOCw/s1600/3.jpg.

[10] “The Islamic State Executes One of Its Own Leaders on Charges of Embezzling Money from Its Treasury,” The New Khalij, November 16, 2014, https://web.archive.org/web/20150418071122/http://www.thenewkhalij.com/ar/node/5450.

[11] “Egyptian ISIS Official Steals Zakat Money … And Flees with One Million Syrian Pounds,” Al-Mogaz, February 2, 2015, http://almogaz.com/news/politics/2015/02/02/1850327.

Mara Revkin is a Fellow at the Abdallah S. Kamel Center for the Study of Islamic Law and Civilization at Yale Law School. She is also pursuing a PhD in political science at Yale University, focusing on governance and lawmaking by armed groups in the Middle East.